How the First Amendment protects racist messages on the Kent State Rock
The Rock is a landmark at Kent State University has been painted with white supremacist statements, including “White Lives Matter,” and “Blacks have no home here,” three times since the beginning of the Fall semester. The statements, which sparked protests on Kent State’s campus, lead to Black United Students issuing a list of demands to Kent State University President Todd Diacon. One of the demands was to add an “anti-hate clause to the code of student conduct that will reprimand students when hate-based incidents occur. Guaranteeing the expulsion of students who violate that clause.”
Frank LoMonte is the director of the Brechner Center for Freedom of Information and the former executive director of the Student Press Law Center. He has worked as a journalist and as a first amendment lawyer. Last week, he discussed the reasons Kent State University might find it difficult to police what is written on the rock.
Q: When it comes to first amendment protections, does anything change when it comes to university campuses versus, say, a public sidewalk?
A: If you or I are walking down the public sidewalk and a representative of the government tries to punish us for something that we’ve said, there’s almost no governmental authority to do that. Short of something like realistically threatening to eminently commit violence. You could count on one hand the categories of speech that are unprotected by the first amendment when you are walking down a public sidewalk in your civilian life. But once the government agency is a college or a university and not a police department, or a Sheriff’s department, or some other arm of the government, then the analysis gets a little more complicated. The courts have been willing to make some compromises in constitutional protection when the regulator is an educational institution and the regulated party is a student.
Q: So for colleges and universities, where is that line?
A: It is extremely unclear where the line is drawn, especially in higher ed. We know where that line is in the off-campus world, and it’s almost anything goes, short of threats of violence. But in the on-campus world, there is at least some possibility that your rights are limited to what the Supreme Court has decided is the standard for K-12 schools. That’s certainly a great unsettled legal question. Inside of K-12 schools, what the Supreme Court has said is, “your rights to speak end when your speech, realistically, poses a threat to disrupt the orderly operations of the institution.” So if your speech is so incendiary and so controversial that it might incite people to start exchanging blows, then it loses its first amendment protection in the school setting. It’s a hugely unsettled question whether that standard extends to higher ed or not.
Q: Kent State University says that what was painted on the rock goes against their morals- is there anything the university can do to control this speech?
A: In the land of the first amendment, the first question is always “what is the government’s justification?” If you have a compelling enough justification, then you can regulate almost anything, but you have to have an especially compelling justification when speech is involved. And so, the first question is, is the government saying that the regulation is necessary to prevent violence or to avoid a substantial disruption of academic activities? Or is it more a case of protecting people against being offended? The more that the regulation looks like it’s necessary to avoid violence, the easier it is to justify. The more that it looks like it’s just protecting people against being offended, the harder it is to justify. The fact that something is offensive doesn’t deprive it from first amendment protection. The courts have told us that over and over again, because quite a lot of rhetoric about political or social issues could be regarded as offensive.
You know, there are people who have tee-shirts that say “F the police.” And a not insubstantial number of viewers might regard that as an offensive sentiment but, undoubtedly, it’s protected by the constitution. There’s no way that you’d be fined, or arrested, or forced to take the shirt off. Offensiveness does not deprive speech of its protection and that’s doubly so where any issue of public concern is involved. So you have to contemplate that speech addressing a social or political issue, even in a very indirect way, is always going to get the highest degree of constitutional protection in the eyes of the courts. And the signature case is the Westboro Baptist Church case, the Snyder v. Phelps case, in the Supreme Court. The Supreme Court was dealing with these protestors who do engage in highly offensive, anti-gay hate speech.
And the court said “because it is addressing gay rights, which is an issue of public concern and debate, they get to engage in that hateful speech. The marketplace will take care of things.” In the eyes of the court, the marketplace will marginalize these people and treat them like crackpots and tune them out. And that’s honestly what has happened. The Westboro Baptist Church, you never hear about them anymore. You never read about them anymore. You never see them on TV. The marketplace has kind of spoken and they’re not interested in what they have to peddle. So the court got that one right. The standard has already been set quite high for protecting speech that addresses matters of social and political concern.
Q: How would a university decide if speech is a substantial disruption of academic activities or just simply offensive?
A: It’s extremely challenging because schools have multiple constituencies to answer to. They have to be mindful of the right of the speakers, who are students, but they also have to be mindful of the larger audience. And there is a vast gray area of uncertainty about speech that walks the line of harassment. I think that’s the single most challenging judgment call. You could tweak one word in a sentence and change it from harassing speech to constitutionally protected political expression. The more something looks like it is intended to place specific audience members in fear and make them unable to enjoy the benefits of a university education, the more compelling the university’s justification to regulate. If somebody is going around doing graffiti that specifically says “let’s beat up gay people,” that’s clearly directed at inciting violence against a discrete minority of the population, and would be quite hard to justify as protected political speech, right? It’s not protected political speech, it’s an attempt to incite violence. But, the same graffiti that says “I disapprove of gay people” is probably protected political speech, even though it makes some people uncomfortable.
Q: Does the fact that the rock is the property of Kent State University make it easier to regulate what is written on it?
A: That’s even an additional layer of complication on top of layers of complication. I would be a hundred percent certain, beyond any dispute, that if a person wanted to stand on the sidewalk and say “White Lives Matter,” that there’s nothing that the university could do to stop them. I’m sure that that’s true. I’m a hundred percent certain as a legal matter that if the campus police issued you a ticket for saying “White Lives Matter” that you would beat that ticket.
I’m a hundred percent certain that that’s true. I am not a hundred percent certain about the writing on the rock because you’re using a piece of government property and the government does have a little more latitude to control how you use their property. So it’s like the difference between handing out leaflets on the sidewalk, versus writing with chalk on the side. If you’re handing out leaflets on the sidewalk, then you’re not really using the government’s property, you’re just happening to pass by. But when you start writing on it with chalk, now you’re actually attaching your message to government property. And I think the government’s authority goes up.
So, the idea of the free speech rock, it is an especially uncertain area of first amendment territory, because you’re actually fixing your message to a piece of property that’s owned by the government. But I think what always ends up happening is the courts look at how this piece of property has historically been used and maintained. If I could come along and write any old piece of nonsense on it, if I could write I love pie on it and I would be welcomed, then you can’t say, well “I’m welcome to write I love pie, but I’m not welcome to write a political message.”
Once you open up a forum for expression, then you really can’t start picking and choosing among messages and messengers. You either open it up or you don’t. So I think generally that’s the way courts would view something like a free speech rock or a free speech wall or a free speech tunnel. It’s “did you throw this open and invite people to come in and post the message of their choice?” And if the answer is yes, then it becomes very hard to pull the welcome mat back.
Q: Why do you think it is so important for universities to protect speech on campuses?
A: College is supposed to be a place for experimentation with ideas and that includes really way out crazy ideas. I’m old enough to remember when the concept of two gay guys getting married was a way out, crazy idea. If you had that conversation in 1980, you would be regarded as being on a very extreme political fringe in America. And guess what- it’s the law today.
So sometimes extreme fringe ideas catch on and become mainstream because people are allowed to communicate them. We don’t want the government getting in the business of filtering which ideas are regarded as too extreme to be heard. If that happens, then there are going to be voices that get smothered that might be worth hearing. Not to say that “White Lives Matter” is one of them, that’s not an especially valuable contribution to the discourse.
But the problem is always the line drawing. You can’t have a standard that says all speech is protected, except speech I don’t like personally. And when you get down to trying to draw a clear and objective line that gives everybody notice of what is and is not protected, you’re going to have to lump in some distasteful speech, just because there’s no other way to draw the line.